PHILADELPHIA - A recent decision by a Pennsylvania appellate judges not only goes against an earlier ruling by their own court but also at least six others.
The case involves Domino's Pizza and whether it can be held liable for the misdeeds of companies using its name under franchise agreements. The Superior Court just ruled it can, as the franchise agreement is so controlling that the corporation should be responsible for an auto accident caused by a driver for a franchisee called Robizza.
In 2023, a three-judge panel ruled 2-1 for Domino's. But by Jan. 31, one of those judges was no longer on the court, which had agreed to use its full nine-member bench to issue its final ruling.
The lone dissenter in 2023, Judge Mary Jane Bowes, was joined this time by seven others in an 8-1 decision putting Domino's on the hook for part of a $2.3 million verdict. The plaintiff, Clarence Coryell, ultimately lost his leg after a Robizza driver struck his motorcycle, and the state's plaintiffs lawyers group filed an amicus brief in his support.
Bowes' majority opinion lays out the terms of the agreement that the court now says show Domino's exerted control over day-to-day operations. It drew a dissent from Judge Megan McCarthy King, who said the arrangement was "contractor-contractee rather than master-servant."
While the majority pointed at provisions regarding employee fingernail and hair length, among many others, King noted Robizza was responsible for building or leasing its premises; obtaining all permits; buying or leasing equipment, fixtures and furniture; buying ingredients and packaging materials; having its own bank account; supervising the store; and obtaining insurance.
"Moreover, Domino's had no ownership interest in Robizza, not did it compensate Robizza as its employee," King wrote.
"Concerning the latter, Domino's received a royalty fee from Robizza based on its sales. Taken together, I would hold that these factors show that Robizza retained day-to-day control over the operations of the store."
King and Judge Dan Pelligrini made up the earlier majority that ruled for Domino's in 2023. At the time, Pelligrini was a retired senior judge assigned to the case, and he was not part of the rehearing.
His 2023 opinion finding Domino's should not be responsible for the acts of another company's driver cited similar decisions in several cases.
The Massachusetts Appellate Court found in 2015 Domino's couldn't be liable for the robbery, kidnapping and killing of a delivery driver of a franchisee, Springfield Pie. Protection requirements laid out in the franchise agreement, like drivers not carrying more than $20 or weapons, discharged any duty it had to the driver.
A 2014 California ruling concerned alleged sexual harassment at franchisee Sui Juris. The plaintiff tried to sue Domino's as vicariously liable, but an appeals court said it couldn't be shown Domino's held control over the hiring, direction, supervision, discipline and discharge of employees at Sui Juris.
A federal court ruling in Ohio reached the same conclusion in a discrimination case against a franchisee, rejecting the idea Domino's and the company were in a joint venture.
In Maine, the details of the case were similar to Coryell's. There, a plaintiff riding a motorcycle was injured when a driver for TDBO struck him. Its franchise agreement said TDBO was responsible for the training and supervision of its employees.
"(W)e conclude that, although the quality control requirements and minimum operational standards are numerous, these controls fall short of reserving control over the performance of TDBO's day-to-day operations," that ruling says.
An Oregon court also had a motorcycle accident case against Domino's, which in the court's mind did not expose Domino's to liability for including requirements in the franchise agreement for drivers to obey the rules of the road. The driver was employed by franchisee Zzeeks Pizza Wings.
Lastly, an Alabama federal court found Domino's couldn't be sued for discrimination by a job applicant of Clarkfinn Pizza.
"In this case, the plaintiff has presented no evidence that the defendant Domino's had any control over the employees' day-to-day activities, or control over hiring and firing at the Westgate Parkway store," the court wrote.